Personalized, EffectiveLegal Representation

Florida’s 2nd Dca Requires Hearing As A Prerequisite To Summary Judgement

On Behalf of | Feb 7, 2020 | Firm News

The right to procedural due process, including an opportunity to be heard, is a constitutional principle that has been carried over generations of litigation. However, this longstanding right is often weighed against and threatened by the realities of litigation. Courts sometimes improperly exceed the scope of their authority and overly restrict access to courts, which is why astute appellate counsel and appellate courts are of fundamental importance to our judicial system. On January 17, 2020, Florida’s Second District Court of Appeal issued its opinion in McElroy v. Oaks on the Bay, LLC, reiterating the importance of the opportunity to be heard prior to the issuance of summary judgment. McElroy v. Oaks on the Bay, LLC, No. 2D18-4932, 2020 WL 253025, at *1 (Fla. 2d DCA Jan. 17, 2020).

In McElroy, Brian and Frances McElroy (“the McElroys”) appealed a summary judgment granted in favor of Oaks on the Bay, LLC (“Oaks”) to enforce two contracts for payment of services. On appeal, the McElroys argued that summary judgment was improper because they were not given the opportunity to be heard at a summary judgment hearing. Oaks took the position that the McElroys were not stripped of their opportunity to be heard, but rather, waived it. Oaks stated that the McElroys waived their right to a hearing on the motion for summary judgment by conducting discovery in a “dilatory” manner, “[failing] to obtain new counsel after their attorney withdrew, . . . [failing] to attend a case management conference, and . . . [failing] to file a written response to the motion for summary judgment.” Id. Thus, Oaks claimed that their lack of participation in the litigation served as a waiver to the hearing. This argument heavily relied on a 2017 Florida Supreme Court case that held a party may waive a legal right, even when it is statutorily or constitutionally protected. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017).

The Second District Court of Appeal failed to adopt Oak’s position. First, the Court noted that Fla. R. Civ. P. 1.510(c) requires a hearing on a motion for summary judgment, and that failure to conduct same would constitute a violation of due process. Thus, the court below was without discretion to grant summary judgment in the absence of a duly noticed hearing. Second, the Court found that even if the right to a hearing on summary judgment could be waived, the McElroys did not act in a manner inconsistent with that right. The Court pointed to the fact that the McElroys filed pleadings and financial affidavits, and objected to requests for production. Therefore, the Court found that the right to a hearing on a motion for summary judgment cannot be waived per Rule 1.510(c), and even if it could, the McElroys did not waive that right by failing to timely engage in discovery. As such, both judges and parties to litigation must ensure that a proper hearing is scheduled for the purposes of summary judgment.

Once in litigation, it is important to retain legal counsel who is well-versed and in tune with legal developments, including procedural requirements and appellate issues. Jeffrey Law, PA, stands ready to assist. Contact us at: [email protected] or 305.222.7921, to schedule a consultation.

Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 “Top Up and Comer” by South Florida Legal Guide and a 2019 and 2020 “Rising Star” by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2020), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by, and various client reviews can be accessed through that platform. See More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at

This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.